‹snip›

No doubt Hedley will say ' Ah! There! You see? The word "factors" comes *before* the word unjust!'

As anyone in this discussion can confirm for themselves, what I actually said was :

I think it is in danger of being forgotten here that English Law is NOT committed to a theory of "unjust factors". This is simply an academic idea. "Unjust factors" have only ever been referred to in 4 cases (as of Tuesday evening, when I searched the LEXIS database), and there is a very long way to go before they can be said to be an accepted part of the law.

Yes, indeed Portman v. Hamlyn was one of the 4 cases.

I presume that Jonathon has some understanding of common law method, and accordingly does not imagine that a brief reference to a concept in a handful of judgments makes that a settled part of the law.

That being so, I am not sure what his point is. I am sure he is capable of explaining it better than he has done.

There is a serious point here, of course, and that is of what would count as adequate evidence that English common law has accepted the "unjust factors". The minimal number of references so far hardly indicates that the theory has taken hold. And the turmoil of academic theory, of which we have seen plenty on this list, is another factor casting doubt on its stability. I think that if Jonathon were to read all of the contributions to this discussion, and not simply mine, he would realise that the factors are not so widely accepted as he assumes.

Steve Hedley

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